Citation Nr: 0111381
Decision Date: 04/19/01 Archive Date: 04/24/01
DOCKET NO. 00-07 177 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an evaluation in excess of zero percent
for a service-connected right shoulder impingement.
2. Whether the veteran is entitled to service connection for
blisters to the feet.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
N. Pflanz, Associate Counsel
INTRODUCTION
The veteran had active service from January 1988 to January
1999.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from a January 2000 rating decision of the
Houston, Texas, Department of Veterans Affairs (VA) Regional
Office (RO).
By way of history, in a rating decision dated in November
1999, the RO granted service connection for right shoulder
impingement and assigned an evaluation of zero percent,
effective January 14, 1999 and denied service connection for
blisters of the feet. In the same decision, the RO denied
service connection for right leg muscle strain and swelling;
granted service connection for fracture of the big right toe
and assigned an evaluation of zero percent, effective January
14, 1999; denied service connection for dry eyes; denied
service connection for acne vulgaris; denied service
connection for painful arch of the right foot; denied
entitlement to a 10 percent evaluation based upon multiple,
noncompensable, service-connected disabilities; denied
service connection for a boil of the inner right thigh; and
denied service connection for jaw separation. The RO noted
that at the time of the rating decision, the veteran's
service medical records were not available for review.
In December 1999, the veteran's service medical records were
received by the RO and it then re-evaluated all of the
veteran's claims. In a rating decision dated in January
2000, the RO maintained each of its decisions regarding the
veteran's claims that it had made in the November 1999 rating
decision.
In January 2000, the veteran filed a statement in support of
claim, which the RO considered a notice of disagreement.
See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200,
20.201, 20.302 (2000). In this statement, the veteran
specifically stated his interest in appealing the RO's
decisions as to the right shoulder impingement and the
blisters of his feet. At the conclusion of the document, the
veteran stated: "Although every decision was not mentioned
in my appeal I believe each should be reviewed, since the
conclusion was made without my medical records."
In January 2000, the RO provided the veteran a statement of
the case only as to the right shoulder impingement and the
blisters of his feet. The remaining issues are discussed in
the remand portion of this opinion.
In March 2000, the veteran submitted a substantive appeal and
thereby perfected appeals to the Board as to the issues of
the right shoulder impingement and the blisters of his feet.
FINDING OF FACT
Right shoulder impingement is manifested by no more than
subjective complaints of pain, without objective evidence of
functional impairment.
CONCLUSION OF LAW
The criteria for an evaluation in excess of zero percent for
a service-connected right shoulder impingement have not been
met. 38 U.S.C.A. § 1155 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records show that the veteran complained of
right shoulder pain in July 1997. It was noted that the pain
was "lifting related" and that the veteran was taking
Naprosyn to relieve the pain. X-rays were negative and he
was assessed as having overuse or right shoulder tendinitis.
He was treated with physical therapy and ice massage.
The veteran presented for a VA examination in July 1999. The
examiner noted that the veteran was left-handed. The veteran
reported that he had "thrown out the shoulder" while moving
furniture in 1995 or 1996. He stated that he was diagnosed
at that time as having separated the shoulder. He reported
being treated with nonsteroidal anti-inflammatories, physical
therapy, ice therapy, activity modification and use of a
transcutaneous electrical nerve stimulation unit. He stated
that his symptoms resolved over a several week period. He
denied any other distinct injury to, injection, or surgery of
the right shoulder. He stated that the right shoulder "is
not too much of a problem now" but he reported pain when he
slept on the shoulder with the arm abducted or forward
flexed. He reported no additional care for the right
shoulder.
Examination of the right shoulder showed no deformity,
discoloration, or swelling. There was no evidence of
shoulder muscle atrophy and no tenderness to palpation of the
acromioclavicular joints or anterior or inferior to the
distal acromion. Active range of motion of the shoulder
showed forward flexion of zero to 180 degrees bilaterally and
without difficulty. Abduction was zero to 180 degrees
bilaterally. External rotation was zero to 90 degrees
bilaterally. Internal rotation was zero to 90 degrees
bilaterally. The Yergason, drop arm and apprehension tests
were all negative. An X-ray of the right shoulder showed a
small acromial spur, but otherwise showed no significant
abnormality. The diagnosis was recurrent right shoulder
impingement syndrome, mild.
Initial Matters
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among
other things, this law eliminates the concept of a well-
grounded claim, redefines VA obligations with respect to the
duty to assist, and supercedes the decision of the United
States Court of Appeals for Veterans Claims (Court) in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
VA's duty to assist includes making reasonable efforts to
obtain medical and other records that are relevant to the
veteran's claim unless it is reasonably certain that such
records do not exist or that further efforts to obtain those
records would be futile. See the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096,
2097-98 (2000) (to be codified as amended at 38 U.S.C.
§ 5103A). The law provides that the assistance provided by
the Secretary shall include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. An
examination is deemed "necessary" if the evidence of record
(lay or medical) includes competent evidence that the
claimant has a current disability, or persistent or recurrent
symptoms of disability; and indicates that the disability or
symptoms may be associated with the claimant's active
military, naval, or air service; but does not contain
sufficient medical evidence for the Secretary to make a
decision on the claim. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98
(2000) (to be codified as amended at 38 U.S.C. § 5103A).
The veteran fully completed his application for benefits.
Therefore there is no duty to inform the veteran of
information needed to complete the application. The RO has
provided the veteran with a statement of the case as to his
right shoulder impingement. He has thereby been informed of
the evidence necessary to substantiate this claim.
VA afforded the veteran an examination in July 1999. That
examination, as will be discussed below, provided sufficient
information on which to evaluate his claim. The veteran has
not made VA aware of the existence of any additional evidence
that would be relevant to his claim. Thus, the Board finds
that VA's duty to provide him with notice and assist him with
the development of his claim has been satisfied, and that the
instant claim is ready for appellate adjudication.
Rating Evaluations
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule),
38 C.F.R. Part 4 (2000). The percentage ratings contained in
the Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and the residual conditions in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2000). In
determining the disability evaluation, the VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2
(2000), which require the evaluation of the complete medical
history of the veteran's condition.
The Court held in Francisco v. Brown, 7 Vet. App. 55, 58
(1994), that "[c]ompensation for service-connected injury is
limited to those claims which show present disability" and
held: "Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance."
The Court has subsequently held that the above rule is not
applicable to the assignment of an initial rating for a
disability following an initial award of service connection
for that disability. At the time of an initial rating,
separate ratings can be assigned for separate periods of time
based on facts found, a practice known as "staged" ratings.
Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7 (2000). All benefit of the doubt
will be resolved in the veteran's favor. 38 C.F.R.
§ 4.3 (2000).
Pyramiding, that is the evaluation of the same disability, or
the same manifestation of a disability, under different
diagnostic codes, is to be avoided when rating a veteran's
service-connected disabilities. 38 C.F.R. § 4.14 (2000). It
is possible for a veteran to have separate and distinct
manifestations from the same injury which would permit rating
under several diagnostic codes, as seen by the separate
assignment of evaluations based on instability and arthritis
with limitation of motion; however, the critical element in
permitting the assignment of several ratings under various
diagnostic codes is that none of the symptomatology for any
one of the conditions is duplicative or overlapping with the
symptomatology of the other condition. See Esteban v. Brown,
6 Vet. App. 259, 261-62 (1994).
Analysis
Under the laws administered by VA, disabilities of the
shoulder and arm are rated under 38 C.F.R. § 4.71a,
Diagnostic Codes 5200 through 5203 (2000). A distinction is
made between major (dominant) and minor musculoskeletal
groups for rating purposes. Handedness for the purpose of a
dominant rating will be determined by the evidence of record,
or by testing on VA examination. Only one hand shall be
considered dominant. In this case, based upon the July 1999
examination, the veteran's right shoulder is considered the
minor upper extremity as the evidence reflects the veteran to
be left-hand dominant. 38 C.F.R. § 4.69 (2000).
Normal ranges of motion of the shoulder are forward elevation
(flexion) zero to 180 degrees, abduction zero to 180 degrees,
and internal and external rotation 90 degrees. 38 C.F.R. §
4.70, Plate I (2000). Under 38 C.F.R. § 4.71a, Diagnostic
Code 5201 (2000) an assignment of a 20 percent evaluation is
warranted where there is limited motion of the minor arm to
shoulder level or midway between the side and shoulder level.
Where motion is limited to 25 degrees from the side, a 30
percent evaluation is warranted.
In this case, there is no competent evidence of right
shoulder motion limited to shoulder level, or further
limited. On the July 1999 VA examination, the examiner
concluded that there was no limitation of veteran's range of
motion. The examiner also found no objective evidence of
other functional factors that would equate to limitation of
motion warranting more than a zero percent evaluation. In a
case such as this where the pertinent diagnostic code does
not provide for a zero percent evaluation, it shall
nevertheless be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31 (2000).
Thus, no increased rating is warranted based on application
of Diagnostic Code 5201.
The Board has also considered the Court's decision in DeLuca
v. Brown, 8 Vet. App. 202 (1995), which held that where
evaluation is based on limitation of motion, the question of
whether pain and functional loss are additionally disabling
must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59
(2000). Disability of the musculoskeletal system is the
inability to perform normal working movement with normal
excursion, strength, speed, coordination, and endurance, and
that weakness is as important as limitation of motion, and
that a part which becomes disabled on use must be regarded as
seriously disabled. However, a little-used part of the
musculoskeletal system may be expected to show evidence of
disuse, through atrophy, for example. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. §§ 4.45 and 4.59 contemplate
inquiry into whether there is crepitation, limitation of
motion, weakness, excess fatigability, incoordination, and
impaired ability to execute skilled movements smoothly, and
pain on movement, swelling, deformity, or atrophy of disuse.
Instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight-bearing are
also related considerations. It is the intention of the
rating schedule to recognize actually painful, unstable, or
mal-aligned joints, due to healed injury, as at least
minimally compensable.
Generally, a finding of functional loss due to pain must be
supported by adequate pathology and evidenced by the visible
behavior of the claimant. See Johnston v. Brown, 10 Vet.
App. 80, 85 (1997). In this case, the Board finds that there
is no clinical evidence of functional loss. The Board
emphasizes the veteran's ability to perform the normal
actions required to ambulate and it is noted that there is
excellent range of motion of the shoulder. The veteran
evidences no additional significant functional impairment as
a result of pain that is caused by his service- connected
disability.
The Court has, however, held that the assignment of a
particular diagnostic code is "completely dependent on the
facts of a particular case." Butts v. Brown, 5 Vet. App.
532, 538 (1993). One diagnostic code may be more appropriate
than another based on such factors as an individual's
relevant medical history, the current diagnosis, and
demonstrated symptomatology. Any change in diagnostic code
by a VA adjudicator must be specifically explained. See
Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this
case, the Board has considered whether another rating code is
"more appropriate" than the one used by the RO. See Tedeschi
v. Brown, 7 Vet. App. 411, 414 (1995). Furthermore,
consideration of other potentially applicable diagnostic
codes is required by Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
Impairments of the clavicle or scapula are evaluated under 38
C.F.R. § 4.71a, Diagnostic Code 5203 (2000), which provides
that a 10 percent evaluation is assigned to either the major
or minor extremity where there is evidence of malunion or
nonunion without loose movement. Assignment of a 20 percent
evaluation is warranted where there is evidence of
dislocation or nonunion with loose movement. That code also
provides that such can be rated based on impairment of
function of a contiguous joint. On the July 1999 VA
examination, an X-ray evaluation failed to reveal any of
these abnormalities. There were no indications of malunion,
nonunion or dislocations. There is no other competent
evidence in this case of any malunion or nonunion of the
clavicle or the scapula, and certainly no competent evidence
of dislocation or loose movement of the shoulder joint to
warrant assignment of a higher evaluation under that
diagnostic code.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2000), a 20
percent evaluation is provided where there is recurrent
dislocation of the minor humerus at the scapulohumeral joint
with frequent episodes and guarding of all arm movements. A
40 percent evaluation is assigned where there is fibrous
union, a 50 percent evaluation is warranted for nonunion or a
false flail joint, and a 70 percent evaluation is warranted
for loss of the humeral head (a flail shoulder). On the July
1999 VA examination, the examiner specifically noted that
there was no deformity, discoloration, swelling of the right
shoulder, nor is there any competent evidence in this case of
dislocation or loose movement of the shoulder joint to
warrant assignment of a higher evaluation under Diagnostic
Code 5202.
The Board finds that the veteran's subjective complaints of
pain and discomfort are not supported by objective evidence
of these symptoms. There is no competent evidence of
additional functional loss or disabling symptomatology to
warrant assignment of a higher, or a separate evaluation
under the Schedule. See 38 C.F.R. §§ 4.7, 4.14, 4.71a.
Consideration has been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4 (2000),
whether or not they were raised by the veteran, as required
by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However,
the Board finds no basis upon which to assign a higher
disability evaluation in that the veteran manifests no
separate and distinct symptoms of right shoulder disability
not contemplated in the currently assigned zero percent
ratings as permitted under the Schedule.
The veteran has not alleged, nor does the record suggest,
that the right shoulder disability has required frequent
periods of hospitalization or marked interference with
employment. Therefore, consideration of an extraschedular
rating under the provisions of 38 C.F.R. § 3.321(b)(1) is not
warranted. Shipwash v. Brown, 8 Vet. App. 218 (1995).
The record does not show any post-service treatment for
problems related to the right shoulder nor has the veteran
submitted any evidence of impairment in employment.
Accordingly, the provisions of 38 C.F.R. § 4.1 pertaining to
impairment in earning capacity resulting from diseases and
injuries are not applicable here.
The only evidence as to the severity of the right shoulder
disability since effective date of the grant of service
connection consists of the veteran's subjective complaints
and the VA examination. The veteran's complaints have not
changed during the period since the effective date of the
grant of service connection. The results of the VA
examination due not show any change in the veteran's
disability during this period. In short, the record does not
show that he is entitled to an evaluation in excess of the
current zero percent for any period since the effective date
of the grant of service connection.
The preponderance of the competent and probative medical
evidence shows that the veteran has full shoulder motion
without evidence of symptomatic scarring, instability,
atrophy, neurologic impairment or other functional loss
residual to his right shoulder disability. Rather, his
residuals consist of no more than subjective complaints
without objective manifestations. Accordingly, the veteran's
claim for an increase is denied. 38 C.F.R. §§ 4.7, 4.14,
4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.
ORDER
An evaluation in excess of zero percent for service-connected
right shoulder impingement is denied.
REMAND
As stated in the Introduction portion of this decision, the
veteran stated in his notice of disagreement that he believed
each issue "should be reviewed." However, the RO did not
provide the veteran a statement of the case as to his right
leg muscle strain and swelling; fracture of his big right
toe; dry eyes; acne vulgaris; painful arch of the right foot;
multiple, noncompensable, service-connected disabilities; the
boil of the inner right thigh; and jaw separation. The Board
finds that the veteran's statement should be interpreted
broadly as a general appeal of all issues. Buckley v. West,
12 Vet. App. 76, 82-83 (1998).
When there has been an initial RO adjudication of a claim and
a notice of disagreement as to its denial, the claimant is
entitled to a statement of the case, and the RO's failure to
issue a statement of the case is a procedural defect
requiring remand. Manlincon v. West, 12 Vet. App. 238
(1999); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995).
Pursuant to the provisions of 38 C.F.R. § 19.9(a) (2000),
"[i]f further evidence or clarification of the evidence or
correction of a procedural defect is essential for a proper
appellate decision," the Board is required to remand the
case to the agency of original jurisdiction for the necessary
action. Therefore, if a claim has been placed in appellate
status by the filing of a notice of disagreement, the Board
must remand the claim to the RO for preparation of a
statement of the case as to that claim. See VAOPGCPREC 16-
92, 57 Fed. Reg. 49747 (1992).
As to the issue of entitlement to service connection for
blisters of the feet, this claim was denied under the old law
on the basis that it was not well grounded.
The new law requires VA to afford examinations where there is
evidence of current disability or symptoms of current
disability, there is evidence that the disability may be
related to service, and the evidence is insufficient to
decide the claim.
The service medical records show that the veteran sought
treatment for blisters on numerous occasions. He has
reported current symptoms of blisters and that these symptoms
have continued since service. However, there has been no
examination or opinion regarding the veteran's complaints of
blisters on his feet. Therefore, a remand is necessary so
that the veteran can be afforded the legally required
examination.
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
2. The RO should issue a statement of
the case,
containing all applicable laws and
regulations, on the issues of entitlement
to service connection for right leg
muscle strain and swelling; dry eyes;
acne vulgaris; painful arch of the right
foot; boil of the inner right thigh; jaw
separation; an increased rating for
fracture of the big right toe; and
entitlement to a 10 percent evaluation
based upon multiple, noncompensable,
service-connected disabilities. The
veteran should be advised of the time
period in which to perfect his appeal.
3. The RO should contact the veteran and
request him to identify the names and
addresses of any medical care providers,
private or VA, who treated him for
blisters of the feet since service. After
securing any necessary release, the RO
should obtain these records for
association with the claims file. The RO
should advise the veteran of any records
it is unsuccessful in obtaining.
4. The RO should schedule the veteran for
VA
examination regarding the blisters of his
feet. The examiner should review the
claims file including this remand, before
completing the examination report.
5. Thereafter, the RO should readjudicate
this claim. If the benefit sought on
appeal remains denied, the veteran and the
veteran's representative, if any, should
be provided a supplemental statement of
the case, which must contain notice of all
relevant actions taken on the claim for
benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified. The veteran is advised that the
examination requested in this remand is deemed necessary to
evaluate his claim and that his failure, without good cause,
to report for scheduled examinations could result in the
denial of his claim. 38 C.F.R. § 3.655 (2000).
The RO is advised that where the remand orders of the Board
or the Court are not complied with, the Board errs as a
matter of law when it fails to ensure compliance, and further
remand will be mandated. Stegall v. West, 11 Vet. App. 268
(1998).
The veteran has the right to submit additional evidence and
argument on the matters that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals